January 17, 2017.
from Superior Court, judicial district of Tolland, Oliver, J.
[motion for permission to amend pleading]; Sferrazza, J.
petitions for writs of habeas corpus, brought to the Superior
Court in the judicial district of Tolland, where the cases
were consolidated; thereafter, the court, Oliver,
J., granted the petitioner's motion for permission
to amend his pleading; subsequently, the court,
Sferrazza, J., rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Improper form of
judgment; judgment directed.
A. Juniewic, assigned counsel, for the appellant
D. Trudeau, assistant state's attorney, with whom, on the
brief, was John C. Smriga, state's attorney, for the
Keller, Prescott and Harper, Js.
petitioner, who had been convicted in two separate criminal
cases of multiple offenses, including conspiracy to commit
kidnapping in the first degree, attempted kidnapping in the
first degree, and murder, sought writs of habeas corpus,
claiming that his attorneys in both cases had rendered
ineffective assistance. The cases were subsequently
consolidated. The day before his habeas trial was set to
begin, after multiple postponements, the petitioner filed a
withdrawal of the habeas action. Despite the filing, the
habeas court required the petitioner to appear the next day,
with counsel, and canvassed the petitioner on the record
regarding his decision to withdraw the case. The habeas court
noted the withdrawal and deemed it to be with prejudice. Less
than one month after he withdrew the habeas action, the
petitioner filed another petition for habeas corpus, claiming
ineffective assistance of his prior habeas counsel for their
failure to adequately challenge the effectiveness of the
petitioner's trial and appellate counsel in the
underlying criminal cases. The trial court rendered judgment
dismissing the petition after hearing evidence on the
respondent Commissioner of Correction's special defenses,
including deliberate bypass, by which the court can deny
relief to a petitioner who has intentionally given up rights
or privileges by bypassing orderly court procedure and
surrendering any remedies. The trial court concluded that the
deliberate bypass doctrine applied, therefore depriving the
court of subject matter jurisdiction. On the granting of
certification, the petitioner appealed to this court,
claiming that the trial court improperly gave preclusive
effect to the ruling of the prior habeas court that the
petitioner's withdrawal was with prejudice because no
hearing on the merits had commenced pursuant to statute
(§ 52-80), and that the trial court improperly concluded
that the doctrine of deliberate bypass barred his action.
trial court did not impermissibly rely on the prior habeas
court's ruling that the petitioner's withdrawal was
with prejudice, but, rather, made its own independent ruling
on the merits under the circumstances to determine that the
petitioner could not maintain the present action: the
petitioner's waiver of his right to go forward with the
habeas trial was made expressly and on the record before the
prior habeas court, the petitioner participated personally in
the decision to withdraw the petition and signed the
withdrawal form after consultation with his attorney, and the
prior habeas court's canvass made abundantly clear that
the decision to terminate the case was the petitioner's,
made knowingly and without force or pressure; furthermore,
the petitioner engaged in procedural chicanery by filing the
petition in an attempt to undermine the order of the prior
habeas court, and such gamesmanship is a limitation on the
general rule that a party has a right to unilaterally
withdraw litigation prior to a hearing on the merits.
court did not address the issue of whether the trial court
improperly applied the deliberate bypass doctrine, as it was
not necessary to reach that claim because of the resolution
of the petitioner's first claim; this court concluded,
however, that the form of the trial court's judgment was
improper because the trial court's determination that the
prior habeas action should be deemed to be withdrawn with
prejudice did not implicate the subject matter jurisdiction
of the court, and as such, the trial court should have
denied, rather than dismissed, the petition.
petitioner, Thomas Marra, appeals from the judgment of the
habeas court dismissing his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the
habeas court improperly dismissed his eighteen count
petition, which alleged claims of ineffective assistance of
counsel against his prior habeas attorneys, because the court
improperly (1) relied on a decision of the prior habeas court
deeming his withdrawal of that action as being
‘‘with prejudice'' and (2) concluded that
the deliberate bypass doctrine barred his action. We conclude
that only the form of the habeas court's judgment is
improper and, accordingly, reverse the judgment on that
record reveals the following relevant facts and procedural
history of this habeas appeal, which derives from two
separate criminal cases and their subsequent posttrial
proceedings. With regard to the first case (Noel case), the
petitioner was found guilty, following a jury trial, of one
count of conspiracy to commit kidnapping in the first degree
in violation of General Statutes §§ 53a-48 and
53a-92 (a) (2) (A), two counts of attempted kidnapping in the
first degree in violation of General Statutes §§
53a-49 and 53a-92, one count of arson in the second degree in
violation of General Statutes § 53a-112 (a) (1) (B), two
counts of larceny in the second degree in violation of
General Statutes § 53a-123 (a) (1), and one count of
accessory to kidnapping in the first degree in violation of
General Statutes §§ 53a-8 and 53a-92 (a) (2) (A).
State v. Marra, 215 Conn. 716, 718-19, 579
A.2d 9 (1990). He was subsequently sentenced to sixty-five
years of incarceration. Id., 719.
relevant facts underlying the Noel case are discussed at
length in our Supreme Court's opinion affirming that
judgment. They may be summarized as follows.
during 1981, the petitioner began operating a criminal
enterprise that involved selling stolen automobiles to J. W.
Ownby, who lived in Kansas City, Missouri. Id., 720.
In 1982, the petitioner hired Richard Noel, the victim, to
drive the stolen automobiles to Ownby, and Ownby and Noel
developed a friendly relationship. Id. In 1983,
Ownby terminated almost all of his dealings with the
petitioner and began dealing primarily with Noel.
Id. The petitioner became
‘‘aggravated'' with the situation, and
his relationships with both men deteriorated. Id.
November, 1983, during the course of a police investigation
into auto theft in the Bridgeport area, Noel implicated the
petitioner in statements to the police, and the petitioner
later became aware of Noel's conversations with the
police. Id., 721. On January 23, 1984, a neighbor of
Noel ‘‘awoke at approximately 2 a.m. to the sound
of a male voice, coming from outside, screaming: ‘No,
no!' ''; observed two men quickly carrying the
limp body of another man, presumably Noel, by his arms and
legs down the sidewalk toward a parked van in which they
tossed him; and, later that morning, ‘‘observed a
large puddle of blood near the door of the building, a clump
of dark brown hair near the puddle, blood splattered from the
puddle over to the place where the van had been parked, and a
set of keys.'' Id., 722-23. The petitioner
later burned the van, and he and his associates dumped a
barrel, presumably containing Noel's body, into the
harbor in Stratford. See id., 723-24.
the petitioner enlisted some of his associates to participate
in a scheme to steal money from Noel's bank account,
which continued until the bank closed the account in March,
1984. See id., 724-25. In addition, the petitioner
filed a lawsuit to collect on a promissory note in the amount
of $18, 000 on which Noel appeared as the maker and the
petitioner as the payee; that suit resulted in a judgment in
favor of the petitioner. Id., 725.
previously indicated, the petitioner appealed from his
judgment of conviction, and our Supreme Court affirmed the
judgment of the trial court. See id., 739.
Thereafter, the petitioner filed a petition for a writ of
habeas corpus, alleging ineffective assistance of trial and
appellate counsel in the Noel case, and the habeas court,
Bishop, J., dismissed the petition and denied the
petition for certification to appeal. Marra v.
Commissioner of Correction, 51 Conn.App. 305, 305,
721 A.2d 1237 (1998), cert. denied, 247 Conn. 961, 723 A.2d
816 (1999). The petitioner subsequently appealed the habeas
court's decision to this court, and this court dismissed
the appeal. See id., 310.
regard to the second case (Palmieri case), the petitioner was
convicted, following a jury trial, of murder in violation of
General Statutes § 53a-54a (a) and sentenced to sixty
years of incarceration. State v. Marra, 222
Conn. 506, 508, 610 A.2d 1113 (1992). The relevant facts
underlying the Palmieri case were set forth in our Supreme
Court's opinion affirming that judgment as well.
February 6, 1984, the [petitioner] asked [Nicholas] Byers to
drive the fifteen year old victim, another associate of the
[petitioner], to the [petitioner's] house later that day.
At the same time, the [petitioner] asked [Frank] Spetrino [an
associate of his] if he would help him put the victim in a
barrel. That evening, Byers drove the victim [Alex Palmieri],
Spetrino and Tamara Thiel, the victim's girlfriend, to
the [petitioner's] house. The [petitioner], the victim,
Byers and Spetrino entered the [petitioner's] garage,
while Thiel remained in the car.
the garage, the [petitioner] and the victim argued about the
[petitioner's] desire that the victim leave Connecticut
and reside for a time in Italy, and the victim's refusal
to do so. When the matter was not resolved to the
[petitioner's] satisfaction, he handed Spetrino an
aluminum baseball bat and told Spetrino not to let the victim
leave the garage. Thereafter, as the group began to exit the
garage, Spetrino struck the victim in the head with the bat.
After Spetrino had hit the victim from one to three times,
the [petitioner] said, ‘Let's get him in the
refrigerator.' Spetrino then began to drag the victim
toward a refrigerator that was located inside the
[petitioner]'s garage. As he was being dragged, the
victim began to speak incoherently, and the [petitioner]
said, ‘Shut up Alex. You didn't go to Italy.'
When the victim failed to quiet down, the [petitioner] struck
him on the head with the bat numerous times. The additional
blows made the victim bleed heavily and caused some of his
brain tissue to protrude from his skull. The [petitioner],
Byers and Spetrino then placed the victim into a large
refrigerator, and the [petitioner] closed and padlocked the
door. The men then loaded the refrigerator into the back of a
rented van, and the [petitioner] and Spetrino drove the van
to a parking area near the Pequonnock River, where the river
empties into the harbor in downtown Bridgeport. After making
several holes in the refrigerator with an axe so that it
would sink, the [petitioner] and Spetrino slid the
refrigerator into the water and it floated away. Although a
police dive team searched the harbor for the victim's
body and the refrigerator for a period of five months, the
divers could locate neither. The victim has not been seen or
heard from by his family or friends since February 6,
1984.'' Id., 508-10.
petitioner appealed from the judgment of conviction, and our
Supreme Court affirmed the judgment of the trial court.
Seeid., 539. Thereafter, on November 25,
1993, the petitioner filed a petition for a writ of habeas
corpus, alleging ineffective assistance of trial and
appellate counsel in the Palmieri case, and the habeas court,
Zarella, J., dismissed the petition. On appeal, this
court affirmed the habeas court's